Glenn v. Roberts, — So.3d —-, 2012 WL 2327756 (Fla. 3d DCA June 20, 2012)

In Florida, Wills have to be in writing; you can’t simply tell someone what you want done with your property after you die and expect those oral instructions to hold up in court. F.S. §§ 731.201(40); 732.502. But what about a Will that basically says "do as I told you"? It’s in writing, does that make it OK? Consider the following:

I give, bequeath and devise all of my estate of whatsoever kind and nature and wherever located to BETTY GUY SHERMAN to dispose of as she has been instructed to do by me.

Does this clause work? Nope. Back in 1994 in Estate of Corbin v. Sherman, 645 So.2d 39 (Fla. 1st DCA 1994), the 1st DCA concluded this clause "clearly attempts to devise the decedent’s property to Sherman for Sherman to distribute according to oral instructions from the decedent. Florida does not recognize oral wills."

Case Study:

In the linked-to case above a Miami probate judge was asked to invalidate a Will containing the following clause on the grounds that it’s a veiled oral will, which according to Corbin doesn’t work.

I hereby give, devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, of whatsoever kind and nature, and wheresoever the same may be situate unto my friend, TERRY GLENN, having full confidence he will honor all requests made to him by me prior to my death as to friends whom I desire he benefit.

The Will also contained the following last and final Article:

In the preparation of this, my Last Will and Testament, I have carefully and thoughtfully considered each member of my family and all of my friends, and have not unintentionally omitted any of them, as it is my desire, and I so direct, that only those beneficiaries named herein, share as beneficiary of my probate estate.

Based on a motion for judgment on the pleadings filed by the decedent’s only grandchild and intestate heir (Roberts), the probate judge ruled the Will was invalid and thus the estate had to be distributed pursuant to Florida’s intestate statute. Wrong answer. According to the 3d DCA the probate judge got this one wrong for two reasons.

First, focusing on the word request the 3d DCA concluded the first quoted clause was a valid bequest coupled with "precatory" language, which is just fine under Florida law. Precatory statements express a wish but don’t create legal obligations or duties.

Here, unlike in Corbin, the language in French’s Will is merely precatory, and not mandatory.FN1 In Corbin, the language at issue was clearly mandatory as it referenced oral instructions for the distribution of property (“to dispose of as she has been instructed”). Because it mandated the distribution of the decedent’s estate pursuant to oral instructions, it constituted an unauthorized oral will. In contrast, the language here does not mandate Glenn to distribute the residuary estate according to instructions from French, but rather, simply expresses French’s hope that Glenn will honor all of her “requests.” In other words, the unambiguous language of the Third Article devises the entire residuary estate to Glenn, who then has the discretion to honor French’s requests.

Second, the 3d DCA focused on the Will’s final Article, which clearly indicated the testatrix (French) was knowingly disinheriting her family members (including Roberts), and clearly giving her estate to Glenn, the beneficiary named in her Will. When you read this clause, it’s hard to understand why the probate judge seems to have ignored it. According to the 3d DCA, the probate judge didn’t explain his ruling "in either a written order or at the hearing." Anyway, this last clause seems to have been the clincher for the 3d DCA.

In construing the Will as a whole, we find further evidence that it was French’s intent to devise her residuary estate to Glenn without limitation from the express language of the Will’s final provision. The Fifth Article states as follows:

In the preparation of this, my Last Will and Testament, I have carefully and thoughtfully considered each member of my family and all of my friends, and have not unintentionally omitted any of them, as it is my desire, and I so direct, that only those beneficiaries named herein, share as beneficiary of my probate estate.

The Fifth Article establishes that: (1) French disinherited her family, among whom Roberts claims to be a member, and did not unintentionally omit them; and (2) the only beneficiaries of French’s estate are those named in the Will, i.e., Glenn and his wife Pearl.

Accordingly, because we find that the trial court erred in finding that the Will at issue was an oral will, we reverse the trial court’s order invalidating the Will and remand with directions to enter judgment finding that Glenn is the sole beneficiary under French’s Will.